Citation NR: 9801400
Decision Date: 01/20/98 Archive Date: 01/28/98
DOCKET NO. 96-03 585 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss and tinnitus.
2. Entitlement to an increased rating for duodenal ulcer,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
INTRODUCTION
The veteran had active military service from January 1943 to
March 1946.
This claim comes before the Board of Veterans’ Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana, denying the veteran claims for an increased
disability rating for his service-connected duodenal ulcer
and for entitlement to service connection for bilateral
hearing loss and tinnitus.
The veteran appeared at a hearing held at the RO in August
1997, before the undersigned, a Member of the Board, who was
designated by the Chairman of the Board to conduct that
hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp.
1997). At the hearing the veteran provided testimony on the
issues on appeal. A transcript of that hearing has been
associated with the record on appeal. It appears that
subsequent to the hearing the RO denied entitlement to
service connection for arthritis of the knees. However, that
issue is not properly before the Board at this time.
REMAND
Decisions of the Board must be based on all the evidence that
is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a)
(West 1991 & Supp. 1997); see also Franzen v. Brown, 9
Vet.App. 235 (1996) (VA’s obligation under sec. 5103(a) to
assist claimant in filing his claim pertains to relevant
evidence which may exist or could be obtained) and Epps v.
Brown, 9 Vet.App. 341 (1996) (sec. 5103(a) duty attaches in
cases where the record references other known and existing
evidence that might pertain to the claim under
consideration). The duty to assist the appellant in the
development of his claim includes the duty to request
information which may be pertinent to the claim. 38 U.S.C.A.
§§ 5106, 5107(a) (West 1991). See Counts v. Brown, 6
Vet.App. 473 (1994).
At the hearing held before the undersigned, the veteran
testified that he has been receiving treatment at the
Shreveport, Louisiana VA Medical Center on a frequent basis.
The representative has requested that those records be
obtained prior to further review on appeal. Inasmuch as it
does not appear that the records of the recent treatment
afforded to the veteran are on file, the Board finds that in
order to properly assist the veteran in the development of
his claim, the case needs to be REMANDED to the RO for the
following development:
1. The veteran should be asked to
provide a list of all medical treatment
that he has received for his claimed
disabilities since 1994. The Board is
interested in obtaining all records of
treatment provided to the veteran by VA
or private sources. He should be asked
to complete the necessary authorizations
for release of private information to the
VA, if necessary. The RO should obtain
all records from the sources reported by
the veteran that are not already in the
claims file. The records obtained should
be made part of the claims folder. All
records of VA inpatient and outpatient
medical treatment from the Shreveport VA
Medical Center should be obtained and
associated with the claims folder. If
any private treatment is reported and the
records are not obtained, the veteran and
his representative should be provided
with information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
2. The RO should schedule the veteran
for a VA examination to ascertain the
current severity of his service-connected
ulcer disease. The claims folder
should be made available to the examiner
for review prior to the examination. All
indicated special studies and x-rays
should be accomplished, and clinical
findings should be reported in detail.
The examiner should be requested to
obtain from the veteran a history of the
manifestations and episodes associated
with the ulcer disease and the type of
treatment that he receives. The examiner
should indicate whether there is medical
evidence of any impairment of health
associated with the ulcer disease. The
examiner's report should include all the
clinical findings and complete rationale
for all conclusions reached.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report is not adequate for rating
purposes, it is incumbent upon the rating
board to return it to the examiner as
inadequate for evaluation purposes. See
38 C.F.R. § 4.2 (1997); and Green v.
Derwinski, 1 Vet.App. 121, 124 (1991);
Abernathy v. Principi, 3 Vet.App. 461,
464 (1992); and Ardison v. Brown,
6 Vet.App. 405, 407 (1994).
4. The RO should subsequently consider
the veteran’s claims.
5. If the veteran’s claim for increased
disability evaluation remains denied, the
RO should then consider
whether the veteran’s case should be
submitted to the Under Secretary for
Benefits or the Director, VA Compensation
and Pension Service for assignment of an
extraschedular rating under the
provisions of 38 C.F.R. § 3.321(1997).
6. The veteran is hereby informed that
he has a right to present any additional
evidence or argument while the case is in
remand status. See Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992); Booth v.
Brown, 8 Vet.App. 109 (1995); and Falzone
v. Brown, 8 Vet.App. 398 (1995).
Once the foregoing has been accomplished and, if the veteran
remains dissatisfied with the outcome of the adjudication of
his claims, both the veteran and his representative should be
furnished with the appropriate supplemental statement of the
case. They should be afforded a reasonable period of time in
which to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran needs to take
no action until so informed. The purpose of this REMAND is
assist the veteran in the development of his claims.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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